Domestic Violence Restraining Orders

IF YOU ARE IN DANGER, CONTACT THE POLICE IMMEDIATELY – LAW ENFORCEMENT CAN OBTAIN AN EMERGENCY PROTECTIVE ORDER 24 HOURS A DAY.

If a child under 12 years old is abused → a parent or guardian must file the restraining order paperwork on behalf of the child; if the child is 12 or older they can file the restraining order paperwork on their own. You are eligible to request a domestic violence restraining order against someone who has:

Abused you or threatened to abuse you (physical or emotional); and

You have a close relationship with the person (married or registered domestic partners, divorced, separated, dating or used to date, have a child together, or live together or used to live together), or you are closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

Form DV-100 → this form provides the judge with the details of your particular circumstances, and what you are asking the court to do.

Form DV-109 → this form will tell both you and the party you are seeking to restrain when to come to court for the hearing.

Form DV-110 → this form asks the court to grant a temporary restraining order to protect you from domestic violence before the hearing. At the hearing, the judge will either cancel the temporary order or convert it to a permanent order.

If children are involved you also need to include the following forms:

Form DV-105, and attach it to Form DV-100 → this form allows you to request that the judge decides custody and visitation while you wait for your hearing date.

If you are requesting spousal, partner, or family support: You need to include: Form FL-150 and attach to Form DV-100.

A request for a civil harassment restraining order can be denied if the proper filing method should have been to request a domestic violence restraining order. The opposite of a workplace violence restraining order request, where individuals mistakenly file this type of request when a civil harassment request is appropriate, individuals are often unaware they should be filing a domestic violence request because of a qualifying familial or domestic relationship. The best course of action is to always consult a qualified restraining order attorney to determine which type of request is appropriate / required.

You can request that the Sheriff serves the domestic violence restraining order documents on the other party. In domestic violence restraining orders (and in civil harassment restraining orders where actual violence or a credible threat of violence is alleged), the Los Angeles County Sheriff’s Department will serve the notice of the restraining order and the notice of the restraining order hearing at no cost.

While this process will sometimes be less effective, as respondents can easily identify a law enforcement official and evade service more easily than when a citizen, dressed in street clothes approaches, a sheriff’s declaration will be more forceful than a process server’s if service is contested. The best course of action is always to hire an attorney when filing a domestic violence restraining order. He or she will usually proceed in the manner most beneficial to your case.

The documents must be served by the deadline the judge writes on your documents – Form DV-109, page 2, item 5.

File a Proof of Service

The person who served the documents must fill out Form DV-200.

If the person is not properly served→request continuance (a delay in the hearing date):

Form DV-115 → this form requests a delay in the hearing date because you were unable to serve the other party with the paperwork in time.

The other party must, after being served with your restraining order paperwork, file and serve you with a response. This response is Form DV-120.

The Hearing

If the domestic violence restraining order is granted → you must serve a Form DV-130 on the other party.

If the other party is at the hearing, you can serve Form DV-130 by mail after the hearing.

If the other party is not at the hearing, but judge’s orders are the same as the temporary order, you can serve copy Form DV-130 by mail.

If the other party is not at the hearing, and the judge’s orders are different from the temporary order, you must personally serve Form DV-130.

At the hearing, be sure to have all evidence you need to present to prove your case available. This means have witnesses who can support your testimony available to testify at the time of the hearing. Have all documents and exhibits with you and ready to show the judge. You must give the other side a copy of all documentary evidence you wish to present at the hearing in advance of the hearing, along with other paperwork you file. When presenting your case, whether in testimony or with physical evidence, be sure to be concise and not embellish the facts. You can call witnesses to support every point that you have made or need to make in order to establish the restraining order hearing. However, calling multiple witnesses to testify to the same fact may be superfluous and the judge may request that you limit the number of witnesses. If certain witnesses are impeached or their testimony is otherwise called into question, you may request to have additional witnesses that the court did not previously allow, testify.

The judge may ask you additional questions. When you are being questioned (cross-examined) by the other side, answer the questions honestly and do not appear combative or argumentative. The more honest you are and the more willing you are to admit facts that are true but may not necessarily support your position completely, the more credibility you will have with other facts of real importance. Lying or appearing to be untruthful about minor details or minor issues can hurt your chances of having arestraining order granted or denied, depending on which side you are on. While witnesses honestly forget certain facts and often cannot recall events verbatim, judges understand this phenomenon and proceed with that fact in mind. It is better for your case to testify honestly, conceding points that are not particularly important, adding credibility to the critical parts of your case.

Restraining Order Hearings & Child Custody

If child custody and visitation is an issue in connection with a restraining order case:

The parties are usually sent to a free Mediation first to help agree on a parenting plan.

If paternity of your child with the restrained person has not been legally determined, and you and the restrained person agree to parentage → enter a judgment via Form DV-180 to avoid a separate case.

Similar to other types of restraining orders, domestic violence restraining order cases may be heard while other, related matters are ongoing (such as in civil harassment restraining order matters, there may be stalking proceedings that are ongoing in criminal court; inelder abuse restraining order cases there may be elder abuse charges or dependency cases already begun; etc.). Domestic violence charges may have been filed in criminal court, divorce proceedings may be underway, along with custody disputes over who the child or children will live with and/or visit.

Grandparent visitation may also be connected to domestic violence matters. While the best course of action is to always have an attorney who is qualified in the area in which your cases is being litigated assisting you, always make sure to understand what the instant case is disputing and focus your time and energy on those issues. In domestic violence restraining order cases, it is important to keep in mind that while custody issues can bleed into restraining order cases, the primary area of concern for the judge will be whether the respondent should be restrained, not criminal charges and not most divorce issues.

When child custody is at issue, as discussed above, the courts will sometimes require or suggest that mediation be attempted. Mediation is a process with an impartial mediator that listens to both sides of a dispute and attempts to find common ground between the sides. If the two sides disagree to a level where settlement is not possible, mediation will not work. Neither side is required to make an agreement and either side may insist that a restraining order hearing, with documentary evidence and testimony being introduced. After the hearing, there is typically no further negotiation, the court will decide the issues related to the restraining order request.

How to Fight a Domestic Violence Restraining Order

If someone is trying to obtain a Domestic Violence Restraining Order against you, they need to serve you with the following forms:

Form DV-100 – this form has all the details of the restraining order and what is being alleged against you. Read this form carefully because it tells you what you are and are not allowed to do.

Form DV-109– this form tells you the date, time, and place of the court hearing.

You need to read the forms that the other party filed with the court and served on you to find out exactly what they are alleging. Then fill out the Form DV-120 with your response. You need to respond with provable facts that dispute what is being alleged against you. Then file the form with the court and mail it to the other party.

Attach any documents that help with your case to the hearing. If there are any witnesses, get their statements in writing or bring them to court with you. If you have any photographs, a police report or any other evidence, make sure to attach them to your response and to bring it to the hearing. At the hearing, the judge will decide whether or not the restraining order should be granted against you.

You have the right to cross-examine the petitioner’s witnesses and to challenge the sufficiency of the petitioner’s written and / or documentary evidence. The same general rules of evidence apply to a respondent’s evidence as they do to the petitioner’s evidence. Be respectful when cross-examining witnesses and be conscious of the court’s time, making only relevant arguments introducing relevant evidence. Courts are more likely to consider your arguments in a restraining order hearing if your evidence, arguments, and documents are concise and make all important points as easy to understand as possible.

Attorney’s Fees in Domestic Violence Restraining Order Cases

The “prevailing party” in a domestic violence restraining order matter can collect attorney’s fees if they were represented by an attorney. In order for the petitioner (the protected person) to be considered the prevailing party, either some or all of the orders requested by the petitioner must be issued by the judge. For the restrained person (the respondent) to be considered the prevailing party, the entire matter must be dismissed, with no orders issued by the judge against respondent.

Because in family law cases, attorney’s fees are determined in part by the financial situation of both sides, the side that thinks they may be entitled to attorney’s fees must file an Income and Expense Declaration, Form FL-150with the court and serve it on the other side before the hearing date. This is usually done together with the Petition or the Response. If one side does not file the Income and Expense Declaration, the judge will not award attorney’s fees to that party. If the prevailing party files the Income and Expense declaration on time, they can seek to recover attorney’s fees by filing a motion with the court. The motion must be filed within 60 days of the hearing. This time may be reduced by the judge when the ruling on the restraining order petition is made.

In cases where the petitioner is victorious on some or all of the orders requested, and has filed a motion for attorney’s fees within 60 days of the hearing, the judge must first examine whether or not the Petitioner has the ability to pay their attorney. If the Income and Expense Declaration of Petitioner is properly filled out and shows little to no disposable income, the petitioner has a good chance of showing an inability to pay. The judge will then consider each sides’ ability to pay. Assuming the respondent is opposing the motion for attorney’s fees, the respondent will also have filed the Income and Expense Declaration, and the judge will be able to compare the declaration of each side and determine how to allocate the attorney’s fees.

The judge can order the losing Respondent to pay a portion of the Petitioner’s attorney’s fees or the entire amount. The court can also decide that the respondent does not have the financial ability to pay any portion of the fees, and despite the fact that the petitioner won the case, refuse to award any attorney’s fees whatsoever. When the respondent is the prevailing party, judges generally use an approach similar to the one described above.

Criminal Charges and Domestic Violence Restraining Orders

Criminal charges as a result of domestic violence are very common. Domestic violence allegations by a petitioner in a domestic violence restraining order case can, in some cases, lead to the filing of criminal charges, specifically Penal Code Section 273.5, which can be alleged as a felony or a misdemeanor. In order to be convicted for a violation of Penal Code Section 273.5, it must be proven that a defendant willfully inflicted, “corporal injury resulting in a traumatic condition upon..”a qualifying victim.

In the course of defending a domestic violence restraining order, it can be necessary, in order to put on a sufficient defense, to have the respondent testify and / or present evidence. While this type of evidence is sometimes necessary, it is very important to always seek the advice of a qualified restraining order attorney to consider whether the risks of testifying or presenting other evidence outweighs the risks of criminal charges.

Statements or admissions can be taken out of context and can be turned over to a prosecutor or police, who can then attempt to use those statements as evidence of criminal conduct. It should always be noted that a restraining order is not a criminal conviction. While a violation of a restraining order can lead to a criminal conviction, careful consideration should always be undertaken to determine whether a defense in a restraining order matter should be attempted at all. On the other hand, if the allegations are untrue, a restraining order hearing can be an excellent venue to contest the charges and prove that they are false.

A domestic violence restraining order hearing, whether or not the respondent testifies, an opportunity to question the petitioner (the petitioner cannot be granted the restraining order if he or she does not attend the permanent restraining order hearing). If the allegations made by the petitioner are true, the chance to cross examine him or her provides an additional statement regarding the events leading up to the filing of the request. A skilled criminal defense attorney, however, will use the petitioner’s testimony when cross-examining him or her at the preliminary hearing (if there is one, in felony cases only) and / or at trial and point out any inconsistent testimony, even if given honestly or with a reasonable explanation for the inconsistency (such as natural lapses in memory, etc.).